- (1.) BY means of this petition, moved under article 226 of Constitution of In dia, the petitioner/tenant has sought writ in the nature of certiorari quash ing the judgment and order dated 26-03-1990 (in RC case No. 06/1982) passed by the Prescribed Authority, Nainital and judgment and order dated 22-11-1985 (RC App. No. 26/1985) passed by III Additional District Judge, Nainital.
(2.) BRIEF facts of the case as nar rated in writ petition, are that petitioner is a tenant, in the shops in question bearing No. 7 and 8 in ground floor of Tourist Hotel, Bhowali, on rent at the rate of Rs. 1200/- per year. Original landlord of said shops was Sri Nand Kishore (since dead) father of the re spondent No. 1 Jag Mohan Chandra Pandey. The respondent No. 1 moved an application (Rent Control Case No. 06/1982) under Section 21 (1) (a) of U. P. Urban Building (Regulation of Let ting, Rent and Eviction) Act, 1972, for release of the shops in the year 1982, on the ground that he needs the shops for opening restaurant and dining Hall. It is alleged in the petition that the pe titioner, himself was running restaurant in the shop in question. It is also al leged that respondent No. 1 was not alone to inherit property of Sri Nand Kishore and can not be said to be sole landlord. The petitioner filed written statement and contested the application for release of the shops before the Pre scribed Authority pleading that neither the respondent No. 1 is sole owner nor his need is bonafide and nor is there greater comparative hardship in his fa vour. By way of amendment in written statement it is further stated that dur ing pendency of proceeding respondent No. 1 has got constructed big room in which his requirement of dining hall can be fulfilled. It is also pleaded by the petitioner (tenant) that need of the landlord can be got fulfilled from other shops No. 3 and 4 also. The Prescribed Authority, after taking evidence of par ties and hearing them, not only found need of the landlord (respondent No. 1) as genuine and bonafide but also gave the finding that there is greater hard-Ship in his favour as against the tenant. Aggrieved by said order, the tenant (petitioner no. 1) Prepared Rent Contro1 Appeal No. 26 of 1985, under Section 22 of U. P. Act 13 of 1972. However, af ter hearing the parties, respondent No. 2 (III Additional District Judge) dis missed the same vide his order dated 26-03-1990. Hence this writ petition by the tenant challenging both the orders passed by authorities below on the ground that the said authorities com mitted gross illegality in holding need of the landlord bonafide and the ac cepting his case of greater hardship. It is also alleged in the writ petition that the respondent No. 1 was not sole owner. The petitioner further alleged in the writ petition that the courts below have erred in law by ignoring the Commissioner's report. During the pendency of writ petition both peti tioner Sri Ram Chandra Kapil and re spondent No. 1 Sri Jag Mohan Chandra Pandey died and their widows got substituted on the basis of said de velopment. Subsequently it is stated by way of amendment that substituted re spondent had failed to plead her need as required under Clause (7) of Section 21 of U. P. Act No. 13 of 1972. Lastly it is pleaded that the petitioner's restau rant has earned good-will and can not be shifted elsewhere. The respondent No. 1 filed counter affidavit in which it has been stated that concurrent findings of fact of courts below can not be interfered with by this Court in its writ jurisdic tion. It is reiterated that the respondent No. 1 needs shop No. 7 and 8 in the ground floor as his tourist Hotel is not running well for want of a restaurant and dining hall with it. It is further stated in the counter affidavit that pe titioner does not require shops in ques tion as he is running fair price shop elsewhere. It is also stated by answer ing respondent that one son of the pe titioner (tenant) is running bakery, an other a betel shop, third is in the army, fourth doing business of sale of news papers. Apart from this it is alleged in the counter affidavit, that petitioner owns three storeyed house in which he has let out one shop to some third per son. The answering respondent filed copies licenses of business being run by the petitionc- and his sons, as annexures to the counter affidavit. It has been denied by the respondent No. 1 that he was not the owner, rather it is stated that Tourist Hotel in the ground floor of which shops in question exist, after death of Sri Nand Kishore is recorded in the name of answering respondent as owner and landlord which has fallen in his share. It is also alleged by the landlord that petitioner got delayed proceedings before Pre scribed Authority for years and there after lingered proceedings before appel late court for further similar period. It is denied that there is any other vacant shop or Hall in which landlords need can be fulfilled. Amended pleas in the writ petition are denied in additional counter affidavit by the substituted re spondent No. 1/1 and reiterated the contents of the counter affidavit filed by her deceased husband. In the rejoinder affidavit con tents of para 9 and 10 of the counter affidavit are admitted which relate to the averments that the different busi ness being run by the sons of the peti tioner and also to the effect that peti tioner owned a three storeyed house, of which one shop is letout by him. In the additional rejoinder affidavit in sub stance, the earlier averments are reiter ated.
(3.) I heard learned counsel for the parties and perused the record. From copy of written statement (Annexure 4 to the writ petition), it is clear that the petitioner admits his sta tus of tenant. It is also admitted in said written statement that the respondent No. 1 is landlord of the shops in ques tion but it is not admitted that he is sole owner of the shops. However, for the purposes of proceedings under U. P. Ur ban Building (Regulation of Letting, Rent and Eviction) Act, 1972, only the relationship of landlord and tenant is relevant and not the full or half owner ship of the landlord. Section 3 (j) of said Act defines the 'landlord' and pro vides that said expression means a per son to whom rent is payable in relation to a building and includes agent of such person. Therefore, in view of what has been admitted in para 1 and 2 of the written statement filed before Pre scribed Authority, there is no doubt that the Sri Ram Chandra Kapil (petitioner) was tenant and Sri Jag Mohan Chandra Pandey (respondent no. 1) was the landlord in respect of the shops in question.;